This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The method of ascertaining indebtedness in such cases is important. The principal and unpaid interest due on all outstanding debts on the day that the amount of the new debt is fixed must be ascertained.1 Interest to become due thereafter must not be counted.2 Warrants payable out of funds on hand,3 or out of taxes levied and unappropriated,4 even if anticipating a levy already made but not collected,5 are not to be counted among the debts 'to determine if the limit is exceeded. If cash on hand is to be deducted from the amount of indebtedness outstanding warrants must be first deducted from the amount of cash on hand.6 Even taxes due from former years but not collected have been deducted from debts,7 and it has been held proper to deduct the sinking fund from debts.8 Taxes uncertain in amount, as licenses for the sale of liquor or taxes on the earnings of a street-railway cannot be deducted from the gross debts.9 Taxes which have become a lien but are not yet collectible cannot be counted as an asset.10 Taxes not yet placed in the hands of the proper officers for collection cannot be deducted.11 Cash on hand is to be deducted from the gross amount of indebtedness.12 Money borrowed for a specific purpose cannot be counted as an asset of the city, though in the treasury, and though no contract for its expenditure has been made.13 There is some conflict on these points, however. It has been held improper to deduct cash on hand,14 or uncollected taxes,15 or claims against others.16 If taxes are not to be deducted, current expenses payable out of the taxes cannot be counted as debts.17 In determining whether the limit or indebtedness has been reached, invalid claims which are not debts, such as, invalid bonds,18 and illegal warrants,19 cannot be counted as a part of the indebtedness, even if voluntarily paid.20 Debts of other public corporations cannot be included though such debts may be ultimately paid in whole or in part by taxes imposed upon the property in the public corporation whose debt is in question.
4 Chicago, etc., Ry. v Wilber, 63 Neb. 624; 88 N. W. 660.
5 Holliday v. Hilderbrandt, 97 Ia. 177; 66 N. W. 89.
6 Valley County v. McLean, 79 Fed. 728; affirming 74 Fed. 389.
1 Epping v. Columbus, 117 Ga. 263; 43 S. E. 803.
2 Ashland v. Culbertson, 103 Ky. 161; 44 S. W. 441.
3 State v. Tomahawk, 96 Wis. 73; 71 N. W. 86.
4 (City of) Cedar Rapids v. Bech-tel, 110 Ia. 196; 81 N. W. 468; Adams v. Waterville, 95 Me. 242; 49 Atl. 1042; Spangler v. Leitheiser, 182 Pa. Si 277; 37 Atl. 832; Shannon v. Huron, 9 S. D. 356; 69 N. W. 598; Rogan v. Sherman, 20 R. I. 388; 39 Atl. 568; Kenyon v. Spokane, 17 Wash. 57; 48 Pac. 783. But in State v. Tomahawk, 96 Wis. 73; 71 N. W. 86, it seemed to be held that only warrants against cash on hand were to be counted.
5 Darling v. Taylor, 7 N. D. 538; 75 N. W. 766 (citing Grant v. Davenport, 36 Ia. 396; Laurence Co. v. Meade County, 10 S. D. 175; 72 N. W. 405; Shannon v. Huron, 9 S. D. 356; 69 N. W. 598; In re State Warrants, 6 S. D. 518; 62 N. W. 101; Spilman v. Parkersburg, 35 W. Va. 605; 14 S. E. 279; dis-approving Prince v. Quincy, 105 111. 138; 44 Am. Rep. 785).
6 Balch v. Beach, 119 Wis. 77; 95 N. W. 132.
7 State v. Hopkins, 14 Wash. 59, 66; 44 Pac. 134,550.
8 Kelly v. Minneapolis, 63 Minn. 125; 30 L. R. A. 281; 65 N. W. 115.
9 Rice v. Milwaukee, 100 Wis. 516; 76 N. W. 341.
10 Herman v. Oconto, 110 Wis. 660; 86 N. W. 681.
11 Balch v. Beach, 119 Wis. 77; 95 N. W. 132.
12 Johnson v. Pawnee County, 7 Okla. 686; 56 Pac. 701; Crogster v. Bayfield County, 99 Wis. 1; 74 N. W. 635; 77 N. W. 167.
13 Herman v. Oconto, 110 Wis. 660; 86 N. W. 681.
14 City Water Supply Co. v. Ot-tumwa, 120 Fed. 309; Chicago v. McDonald, 176 111. 404; 52 N. E. 982.
15 Chicago v. McDonald, 176 111.
404; 52 N. E. 982; Municipal Security Co. v. Baker County, 33 Or. 338; 54 Pac. 174.
16 Jordan v. Andrus, 27 Mont. 22; 69 Pac. 118.
17 O'Bryan v. Owensboro, - Ky - ; 68 S. W. 858; rehearing denied, 69 S. W. 800; Redding v. Esplen Borough, 207 Pa. St. 248; 56 Atl. 431.
18 Ashuelot National Bank v. Lyon County, 81 Fed. 127; German Ins. Co. v. Manning, 95 Fed. 597; State v. Hopkins, 14 Wash. 59, 66; 44 Pac. 134, 559.
19 Keene, etc., Bank v. Lyon County. 97 Fed. 159.
20 Lyon County v. Bank, 87 Fed. 137,- 30 C. C. A. 582; affirming 81 Fed. 127.
Thus the debt of a school district co-terminous with a city cannot be counted as city debt,21 nor can the debt of a water district be so counted ;22 nor the proportionate share of the county debt payable by the city;23 nor the proportionate share of the state debt.24 Nor are bonds to be paid by a tax on a township which is to be collected and paid over by the county, debts of the county.25 A debt payable solely out of special assessments, not creating a personal liability against the city is not to be counted.26 If a debt is incurred for which the city is primarily liable, it must be counted in determining whether the statutory limit is exceeded, even if the city is to be reimbursed out of local assessments,27 or in some other manner, as in case of bonds to be paid out of the proceeds of the waterworks.28 If a bond is a personal liability against the corporation, it must be counted though provision is made for a tax to pay such bond.29 The legislature may provide specifically that a certain debt is not to be counted in determining the limit of indebtedness.30 If a special provision is made by statute for issuing bonds in excess of the amount usually permitted, as where they are issued for some specific purpose, as for furnishing water,31 or where they are issued in a specific manner, as by vote of the electors,32 bonds issued under such special provisions are not to be counted in determining whether the usual limit of indebtedness has been exceeded. Since the special issue could be made, though the ordinary indebtedness of the city had then reached the statutory limit, it follows that if the special issue is made before the ordinary indebtedness has reached such limit, it should not prevent the ordinary indebtedness from reaching such limit thereafter.33 Bonds issued under a special statute for erecting a county insane asylum are not to be included to determine whether debt exceeds the limit.34 An unliquidated claim for damages for breach of contract by a contractor cannot be subtracted from the amount due on the contract in estimating debts.35
21 Heinl v. Terre Haute, 161 Ind. 44; 66 N. E. 450; Hyde v. Ewert, - S. D. - ; 91 N. W. 474.
22 Kennebec Water District v. Wa-terville, 96 Me. 234; 52 Atl. 774.
23 Todd v. Laurens, 48 S. C. 395; 26 S. E. 682.
24 Lancaster School District v. Robinson-Humphrey Co., 64 S. C. 545; 42 S. E. 998.
25 Board, etc., of Monroe Co. v. Harrell, 147 Ind. 500; 46 N. E. 124.
26 Davis v. Des Moines, 71 Ia. 500 ; 32 N. W. 470.
27 Burlington Savings Bank v. Clinton, 111 Fed. 439; Allen v. Davenport, 107 Ia. 90; 77 N. W. 532; Stehmeyer v. Charleston, 53 S. C. 259; 31 S. E. 322; Fowler v. Superior, 85 Wis. 411; .54 N. W. 800.
28 Joliet v. Alexander, 194 111. 457; 62 N. E. 861.
29 0ttumwa v. Water Supply Co., 119 Fed. 315; 59 L. R. A. 604.
30 Prince v. Crocker, 166 Mass. 347; 32 L. R. A. 610; 44 N. E. 446.
31 Los Angeles v. Hance, 137 Cal. 490; 70 Pac. 475; Wells v. Sioux Falls, - S. D. - ; 94 N. W. 425.
32 State v. Blake. 26 Wash. 237; 66 Pac. 396; Hazeltine v. Blake, 26 Wash. 231; 66 Pac. 394.